‘An essential characteristic that justifies equal treatment with regard to all persons applying for certificates for renewable energy installers, on the basis of the challenged provision, is to have sufficient knowledge and skills in the field of renewable energy installations, confirmed by a relevant higher education diploma. The challenged provision differentiates between the rights of persons who are in the same situation from the point of view of law,’ stated the Constitutional Tribunal.

On 19 January 2017 at 9 a.m., the Constitutional Tribunal considered the Ombudsman’s application concerning rules for issuing certificates for renewable energy installers.

The Constitutional Tribunal adjudicated that Article 136(4)(2) of the Renewable Energy Sources Act of 20 February 2015:

a) in the version that was binding from 4 May 2015 until 30 June 2016, in the part comprising the words “issued on the basis of the provisions of the Higher Education Act of 27 July 2005”, is inconsistent with Article 32(1) of the Constitution of the Republic of Poland as well as is not inconsistent with Article 65(1) of the Constitution;

b) in the version that has been binding since 1 July 2016, in the part comprising the words “issued after 1 September 2005, on the basis of the provisions of the Higher Education Act of 27 July 2005”, is inconsistent with Article 32(1) of the Constitution as well as is not inconsistent with Article 65(1) of the Constitution.

Moreover, the Tribunal decided to discontinue the proceedings as to the remainder.

The ruling was unanimous.

The constitutional issue that was determined in that case by the Constitutional Tribunal amounted to answering the question as to whether, in the context of the constitutional principle of equality, the legislator had had competence to impose a restriction entailing that, in accordance with the simplified procedure, certificates for renewable energy installers might be obtained – within the scope regulated in the challenged provision – only by those graduates of higher education institutions who had completed specialised studies and whose diplomas had been awarded on the basis of the provisions of the Higher Education Act (after 1 September 2005).

The Constitutional Tribunal stated that, the Renewable Energy Sources Act, within the scope of its regulation, implemented the Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC. In the light of the above – according to the Tribunal – by implementing the said Directive into the national legal order and by devising a detailed procedure for issuing certificates for renewable energy installers, the legislator – following the EU law-giver – primarily wished to ensure that the installers would be able to confirm their sufficient theoretical knowledge and, in particular, their practical skills which would enable them to install renewable energy equipment in the way that would guarantee the optimal effectiveness of the functioning of the installation as well as an appropriate level of its safety. Moreover, the legislator’s way of shaping the certification system for renewable energy installers was also justified by the intention to motivate the installers to further enhance their knowledge and improve their vocational skills, which was perceived as needed due to the rapid development of the renewable energy sector.

Provided in Article 136(4) of the Renewable Energy Sources Act, a departure from the obligation to have completed relevant basic training for persons that apply for such certificates as well as the obligation to have passed a relevant examination would be justified by the assumption – presumably made by the legislator – that persons holding a diploma in specialised studies from a higher education institution do have knowledge and skills which would at least be equivalent to those expected from trainees after they have completed their basic training, plus the graduates have been tested in the course of formal higher-education examinations.

Relying on the above considerations, the Tribunal concluded that an essential characteristic that justifies the equal treatment of all persons applying for certificates for renewable energy installers on the basis of the challenged provision, is to have sufficient knowledge and skills in the field of renewable energy installations, confirmed by a relevant higher education diploma. Consequently, the Tribunal deemed that the challenged provision differentiates between the rights of persons who are in the same situation from the point of view of law.

The Tribunal stated that a restriction concerning the time-limit for issuing the diploma which determines the application of Article 136(4)(2) of the Renewable Energy Sources Act does not, in itself, constitute a violation of the principle of equality – it remains directly and rationally linked with the purpose and key content of the provisions of the Renewable Energy Sources Act.

Due to the aforementioned aims underlying the certification of renewable energy installers, confidence in their knowledge and skills which they have gained outside the system of certification training and examinations must gradually weaken in the long run. Both knowledge and skills may, with the passage of time, decrease or fall behind the latest research and technological developments within the field of renewable energy sources, in particular where after the completion of higher education, a person applying for a certificate for a renewable energy installer had little, or none, practice within the area of renewable energy sources. Those factors affected the legislator; when implementing the Directive 2009/28/EC, the legislator limited the period of validity of certificates for renewable energy installers to five years; no exceptions to this rule were provided for. This entails that even persons that meet the requirements for obtaining the aforementioned certificates in accordance with the simplified procedure are forced – only after a few years since obtaining the said document – to apply for the extension of the validity thereof. Therefore, in each case the person in question should, inter alia, be required to complete revision training and have relevant experience in installing, modernising or maintaining renewable energy installations.

The same reasons justify the legislator’s limited confidence in the knowledge and skills of persons who had received a relevant diploma long before they applied for the first time for a certificate for a renewable energy installer, which has resulted in depriving them of the possibility of resorting to the simplified certification procedure.

In the light of the constitutional principle of equality, one may not allege that the legislator limits the usefulness of a relevant higher-education diploma in the course of the certification procedure; however, one may raise the allegation of the unauthorised setting of a date, which is done disregarding the passage of time between the moment of issuing the relevant diploma to an interested person and the moment when the said person applies for a certificate for renewable energy installers.

The Constitutional Tribunal stressed that, in the context of interests safeguarded by the differentiation introduced in the challenged provision, the date of 1 September 2005, set therein as a date marking the end of a certain period, is arbitrary.

The said differentiation entails, inter alia, that, in the long run, the group of persons who are eligible to resort to the simplified procedure will predominantly comprise graduates with diplomas awarded on the basis of the Higher Education Act long before they apply for the certificate. The exemption from the ordinary certification procedure of persons whose knowledge and skills were verified and were certified by a relevant document many years ago clashes with the objectives of certifying renewable energy installers. Analysed in the context of those objectives, the situation of those installers is no different from the situation of the persons who once gained similar knowledge and skills in the past, but obtained the relevant diploma prior to 1 September 2005.

The entry into force of the judgment – which entails that the excerpt of the challenged provision indicated in the operative part of the judgment will cease to have effect – will result in a situation where certificates for renewable energy installers would be applied for by persons who hold diplomas in specialised higher-education studies regardless of the date when the diploma was issued, i.e. regardless of the fact on the basis of which statute (regulating the functioning of higher education institutions) the said diploma was issued.

The determination issued in the present case does not rule out the legislator’s introduction of limited access to the simplified procedure for obtaining certificates for renewable energy installers which would be based on the date of issuing a relevant higher-education diploma, as long as the limitation does not take the form of a fixed time-limit (date), but is relativised depending on the passage of time between the moment of obtaining the diploma and the moment of filing an application for the certificate.

The adoption of such a restriction would have to be deemed as justified by the intention to attain internal coherence of the Renewable Energy Sources Act as well as to harmonise the said Act with the Directive 2009/28/EC.

The hearing was presided over by Judge Stanisław Rymar, and the Judge Rapporteur was Judge Sławomira Wronkowska-Jaśkiewicz.